CCJ from BE Legal/Excel relating to incident in 2012

TobyZ

Hi all, court date fast approaching so I am preparing materials. I've decided to prepare separate materials for the two elements of my request (incorrect service of the claim under Civil Procedure Rules and contesting the claim itself). Below is the statement I have come up with regarding incorrect service - could you guys take a look and offer feedback? Thanks!

1. Set aside the Default Judgement as it was not correctly served under Civil Procedure Rules
2. Civil procedure rules 6.9 concerning service of a claim state the following:
THE RULES: CPR 6.9(3) – (6).
“(3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).
(4) Where, having taken the reasonable steps required by paragraph (3), the claimant –
(a) ascertains the defendant’s current address, the claim form must be served at that address; or
(b) is unable to ascertain the defendant’s current address, the claimant must consider whether there is –
(i) an alternative place where; or
(ii) an alternative method by which,
service may be effected.
(5) If, under paragraph (4)(b), there is such a place where or a method by which service may be effected, the claimant must make an application under rule 6.15.
(6) Where paragraph (3) applies, the claimant may serve on the defendant’s usual or last known address in accordance with the table in paragraph (2) where the claimant –
(a) cannot ascertain the defendant’s current residence or place of business; and
(b) cannot ascertain an alternative place or an alternative method under paragraph (4)(b).”

3. The key issues to decide are therefore:
(i) whether the claimant had reason to believe that the defendant no longer resided at the address used for service
(ii) whether the claimant took reasonable steps to ascertain the address of the defendant’s current residence
(iii) whether, in being unable to ascertain this address, the claimant considered (as they must) whether there is an alternative place and method by which service may be effected

I will address each of these in turn.

3.1 Did the claimant have reason to believe the defendant may no longer reside at the address used for service?

This claim related to a parking incident which occurred in March 2012. The claimant made use of the address acquired from the DVLA at the time of the incident. They are not permitted to make further searches of DVLA records so they knew at the time of seeking to serve the claim that the address they were using was around 5 years old (I do not know the precise dates of attempts to serve as this information has not been provided to me by the claimant).

In fact, the address used ceased to be my usually resident address in July 2012, when I moved for the first time – I subsequently moved again in August 2013 to the address where I have lived since.
I contend that the claimant had reason to believe the defendant no longer resided at the address used for service on the following grounds:
1. They knew that the address being used for service was five years old. Given the frequency with which people move, five years is more than sufficient time to create a reasonable probability that the address was out of date. Particularly when the defendant is of an age where moves are frequent.
2. They had not received any response to critical correspondence from the claimant.

Civillitigationbrief.com, a site providing advice to lawyers pursuing civil litigation, offers the following advice regarding this rule of service:
• If the claimant has any suspicion at all that the defendant does not remain at the “last known address” it would be prudent to check this prior to issue.
• A prudent claimant should assume that lapse of time, or a failure to respond to correspondence, gives rise to a risk that the defendant has moved.

The “New Law Journal” concurs with this interpretation: “[A] complete lack of response to demands and letters before action served at the property coupled with an absence of other information indicating the [claimant’s] presence, gives reason to believe they no longer reside there”
[from https://www.newlawjournal.co.uk/content/pattern-life]

The passage of five years, and the lack of response to critical correspondence constitute reasonable grounds for a belief that the defendant was no longer resident at the address where service was attempted. The claimant’s attempt to use this address for service is therefore in violation of this clause of CPR 6.9.

3.2 Did the claimant take reasonable steps to ascertain the address of the defendant’s current residence?

If reason to believe the defendant is no longer resident at the last known address exists, the claimant must take “reasonable steps” to ascertain the defendant’s current address. Howard Tilney, a lawyer at lawgistics.co.uk with 30 years’ experience in this field defines an example “reasonable steps” in the following way:
“So, in this instance the claimant may, for example, instruct an enquiry agent in an attempt to trace the whereabouts of the errant party. If the agent draws a blank, then the claimant will at least be able to serve the defendant at its last known address and show that it took reasonable steps.”

I contend that the claimant cannot have taken reasonable steps to ascertain the defendant’s current address, because if such steps had been taken then the defendant’s current address would easily have been located. The defendant was, in short “there to be found”. Some examples of simple means whereby I could have been traced include:
(a) The electoral register, where I have been listed at my current address for over four years.
(b) The local council, where I have been listed at my current address for payment of council tax for over four years.
(c) The DVLA, from whom my current driving licence was issued on [DATE THREE YEARS AGO], to my current address. I no longer posses the V5C documentation relating to the vehicle involved in this claim. This documentation will confirm it was sold on [EARLY LAST YEAR]. The new registered keeper is a family friend who could have either provided contact details or provided details of the car I bought in a part exchange deal, which is registered at my new address.
(d) The car insurance company - insurance on this vehicle was registered at my current address from [DATE THREE YEARS AGO]
(e) HM Revenue and Customs - I have been registered at my current address for the purposes of self-assessment tax returns for four years.
(f) Internet search engines such as Google. The first four links returned by a Google search of "[CLAIMANT NAME OLD ADDRESS]" relate to me, as do the first seven searches returned by a google search of "[CLAIMANT NAME CLAIMANT HOME CITY]" and four of the first five links returned by "[CLAIMANT NAME CLAIMANT HOME CITY CAR REGISTRATION" (this last being the registration number of the car involved in the incident). Most of these links provide contact information such as email or mobile telephone.
(g) Social media – the first account which comes up on popular social media site twitter if one searches “CLAIMANT NAME CLAIMANT HOME CITY” is my personal account on twitter. The first account which comes up on popular social media site facebook if one searches “CLAIMANT NAME CLAIMANT HOME CITY” is my personal account on facebook. Both sites contain personal contact methods which could be used to confirm my identity for purposes of service.

As the claimant failed to ascertain the current residence of the defendant (an address where he has resided for three and a half years at the time the CCJ was recorded), despite multiple straightforward routes being available to do so, I contend that the claimant failed to take “reasonable steps” to ascertain the current residence of the defendant as required under CPR 6.9

3.3 Did the claimant whether alternative place and methods by which service may be effected?

If the claimant fails to ascertain the current address of the defendant, they must under CPR rules consider alternative places and methods by which service may be effected. Many of the channels by which the claimant could have ascertained the current address of the defendant could also have been used to identify alternative places and methods to effect service on the claimant. These include, but are not limited to:
(a) Service at the defendent’s place of work: The defendent has worked at the same workplace for ten years. His work address is prominently featured in the various websites which return at the top of the google searches detailed above, using his name and last known address or his name and the registration of the car involved in the incident
(b) Service via electronic mail: The defendant’s email address also features prominently in the web pages returned by google searches detailed above
(c) Service via facebook or twitter. Rocco Franco, partner at Pinni Franco LLP, detailed a case of service being effected by facebook in 2012. He notes: “What is important here is that the courts recognised the increasing power of social networking sites like Facebook. This is clearly another example of the English case law system being by nature a flexible means in the hands of the judges which allows them to adapt rules of law, which are sometimes old and obsolete, to modern life and modify legal procedure taking into account changes of society.” As has already been noted, the defendant’s facebook page and twitter account are returned as the first options when his name and home city are used on the relevant sites.

As the claimant made no attempt to serve the claim via any alternative means, I contend that they failed to meet their obligations to do so as laid out under CPR rules

4. Concluding remarks

The County Court Judgement obtained against the defendant in default, of which the defendant first became aware in August 2017, has already caused him considerable distress and expense. This has included damage to his credit record which has already impacted on his ongoing credit commitments, and time and resources expended to pursue proper redress.

The claimant had clear obligations to follow in pursuing this claim under Civil Procedure Rules, in particular applying reasonable belief regarding current residence, taking reasonable steps to ascertain a current address, and investigating alternative methods whereby service could be effected. Given the severe consequences of County Court Judgements for those on whom they are issued, these rules surely exist to safeguard defendants’ rights, and protect against abusive practice. The claimant did not take any of the steps required under the rules, and has thus caused needless and vexatious harm to the defendant, via neglectful practice.

According to publicly available information my circumstances in being pursued in a vexatious and neglectful fashion are far from being unique. The Claimant’s persistent failure to use correct and current addresses, a matter of public record in numerous similar cases to this one, is generating an unnecessary burden for individuals and the justice system across the country.

This practice was singled out for criticism in the 23rd December 2016 Ministry of Justice announcement of a crackdown on companies issuing claims using incorrect addresses (see exhibit . Announcing the measures, Justice Minister Sir Oliver Heald stated:

"It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. In the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address."

As a result of the failure to serve, the Claimant was not entitled to ask for and should not have obtained default judgment. As such the court is respectfully requested to set aside the judgment.

Loadsofchildren123

Looks great. Couple of typos, give it a read through.
Could you bullet point it or split it into further sub-sections, which make it easier for the judge to refer to?

TobyZ

Thanks, Loadsofchildren. It is split into numbered subsections in the original, for some reason that formatting didn't come through when I posted it.

Loadsofchildren123

Ok, that happens to me a lot. The forum isn't set up for copying and pasting from Word!

TobyZ

Anyone else have any advice on my statement? If it is fine, then that's great - but would be reassuring to hear that from more experienced people!

nosferatu1001

LOC123 works in the legal profession. If theyve looked it over then youre good to go.

The_Deep

For less than a pound, most people can be traced on 192.com.

TobyZ

Thanks, The Deep. I will add that to my case.

TobyZ

Quick question for everyone - should I prepare a schedule of costs in case I'm successful, and if so what/how much can I put on it?

Thanks!

Umkomaas

TobyZ wrote: »

Quick question for everyone - should I prepare a schedule of costs in case I'm successful, and if so what/how much can I put on it?

Thanks!

Yes and you need to submit it to the court and the claimant (solicitors) at least 24 hours before the hearing.

LoC133 has drafted a model cost schedule, (which judges have commented upon favourably) and is included in the NEWBIES FAQ sticky, post #2.